President Trump is reportedly considering a Memorial Day pardon for a Navy SEAL accused of murdering an injured ISIS prisoner, but his lawyer would prefer the president dismiss his case entirely.
Both a dismissal and a pardon would free Special Operations Chief Edward Gallagher of all charges, but a dismissal would have an even greater impact on his future, Gallagher’s lawyer said.
“Chief Gallagher’s innocent of the charges here. If he’s pardoned, then a large portion of the population will always say, ‘Oh, well, he was pardoned for an offense that he committed,'” Tim Parlatore told the Washington Examiner. “So for us, a dismissal is much better because a dismissal is a recognition of the truth, which is that he’s innocent.”
Gallagher’s supporters argue he has received unfair treatment from the prosecution since the start. They said Gallagher faced poor conditions when he was being held in a Navy brig, leaving him constantly cold and hungry. President Trump tweeted in March that in “honor of his past service to our Country,” Gallagher would “soon be moved to less restrictive confinement while he awaits his day in court.”
Last week, Parlatore said he plans to file an ethics complaint against lead prosecutor, Cmdr. Chris Czaplak, after Czaplak sent the defense team emails embedded with tracking software.
Gallagher, 39, has pleaded not guilty to charges he killed an injured teenage ISIS prisoner by knife and shot at civilians while deployed to Iraq in 2017. His court-martial was scheduled to begin May 28 in San Diego, but Wednesday the judge ordered it delayed amid the defense’s complaints that the prosecution’s email tracking might have harmed Gallagher’s right to a fair trial.
The president has the constitutional authority to pardon citizens of their crimes, but Parlatore said he also has the authority to dismiss military legal cases as commander in chief. The military has its own legal system, the Uniform Code of Military Justice, which ultimately puts military courts under the purview of the president.
“Any order he gives as the commander in chief, that’s a lawful order that has to be obeyed,” Gary Solis, a former military prosecutor and judge, told the Washington Examiner. “So if he were to give an order to the Army to dismiss charges against … Gallagher, I am confident that they would carry it out, because it’s a lawful order.”
Trump as commander in chief is the only military commander who can order the dismissal at any point during Gallagher’s court-martial, according to Solis, a Georgetown University law professor. The “convening authority,” the commander with the authority to convene the court-martial, can dismiss prior to trial but not once it has been referred to trial.
“I would expect that he would probably review some of the case materials first before doing that, because obviously a dismissal on the merits should be after reviewing the merits of this case,” said Parlatore. “And the merits of this case are that he’s innocent.”
